common law

1. the system of law originating in England, as distinct from the civil or Roman law and the canon or ecclesiastical law.

2. the unwritten law, esp. of England, based on custom or court decision, as distinct from statute law.

3. the law administered through the system of courts established for the purpose, as distinct from equity or admiralty.

[1300-50; ME]

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Body of law based on custom and general principles and that, embodied in case law, serves as precedent or is applied to situations not covered by statute.

Under the common-law system, when a court decides and reports its decision concerning a particular case, the case becomes part of the body of law and can be used in later cases involving similar matters. This use of precedents is known as stare decisis. Common law has been administered in the courts of England since the Middle Ages; it is also found in the U.S. and in most of the British Commonwealth. It is distinguished from civil law.

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Introduction

also called  Anglo-American law 

      the body of customary law, based upon judicial decisions and embodied in reports of decided cases, that has been administered by the common-law courts of England since the Middle Ages. From it has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth (formerly the British Commonwealth of Nations). In this sense common law stands in contrast to the legal system derived from civil law, now widespread in continental Europe and elsewhere. In another, narrower, sense, common law is contrasted to the rules applied in English and American courts of equity and also to statute law. A standing expository difficulty is that, whereas the United Kingdom is a unitary state in international law, it comprises three major (and other minor) legal systems, those of England and Wales (Welsh law), Scotland (Scottish law), and Northern Ireland. Historically, the common-law system in England (applied to Wales since 1536) has directly influenced that in Ireland but only partially influenced the distinct legal system in Scotland, which is therefore, except as regards international matters, not covered in this article. The legal systems in the United Kingdom have, since 1973, experienced integration into the system of European Union law, which has direct effects upon the domestic law of its constituent states—the majority of which have domestic systems that have been influenced by the civil-law tradition and that cultivate a more purposive technique of legislative interpretation than has been customary in the English common law. The regime of human rights represented by the European Convention on Human Rights (1950) has exercised a similar influence in the United Kingdom since the passage by Parliament of the Human Rights Act 1998.

The origin of the common law

      The English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. Like many other early legal systems, it did not originally consist of substantive rights but rather of procedural remedies. The working out of these remedies has, over time, produced the modern system in which rights are seen as primary over procedure. Until the late 19th century, English common law continued to be developed primarily by judges rather than legislators.

      The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons (Anglo-Saxon), especially after the accession of Alfred the Great (Alfred) (871), had developed a body of rules resembling those being used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government. Crimes were treated as wrongs for which compensation was made to the victim.

      The Norman Conquest did not bring an immediate end to Anglo-Saxon law, but a period of colonial rule by the mainly Norman conquerors produced change. Land was allocated to feudal vassals of the king, many of whom had joined the conquest with this reward in mind. Serious wrongs were regarded mainly as public crimes rather than as personal matters, and the perpetrators were punished by death and forfeiture of property. The requirement that, in cases of sudden death, the local community should identify the body as English (“presentment of Englishry”)—and, therefore, of little account—or face heavy fines reveals a state of unrest between the Norman conquerors and their English subjects. Government was centralized, a bureaucracy built up, and written records maintained. Controversy exists regarding the extent to which the efficient government of the Anglo-Norman realm was due to the legacy of Anglo-Saxon institutions or to the ruthlessness of the Norman invaders. Elements of the Anglo-Saxon system that survived were the jury, ordeals (ordeal) (trials by physical test or combat), the practice of outlawry (putting a person beyond the protection of the law), and writs (orders requiring a person to appear before a court; see below The development of a centralized judiciary (common law)). Important consolidation occurred during the reign of Henry II (1154–89). Royal officials roamed the country, inquiring about the administration of justice. Church and state were separate and had their own law and court systems. This led to centuries of rivalry over jurisdiction, especially since appeals from church courts, before the Reformation, could be taken to Rome.

      The Normans spoke French and had developed a customary law in Normandy. They had no professional lawyers or judges; instead, literate clergymen acted as administrators. Some of the clergy were familiar with Roman law and the canon law of the Christian church, which was developed in the universities of the 12th century. Canon law was applied in the English church courts, but the revived Roman law was less influential in England than elsewhere, despite Norman dominance in government. This was due largely to the early sophistication of the Anglo-Norman system. Norman custom was not simply transplanted to England; upon its arrival, a new body of rules, based on local conditions, emerged.

The feudal land (feudal land tenure) law

      During the critical formative period of common law, the English economy depended largely on agriculture, and land was the most important form of wealth. A money economy was important only in commercial centres such as London, Norwich, and Bristol. Political power was rural and based on landownership.

      Land was held under a chain of feudal (feudal land tenure) relations. Under the king came the aristocratic “tenants in chief,” then strata of “mesne,” or intermediate tenants, and finally the tenant “in demesne,” who actually occupied the property. Each piece of land was held under a particular condition of tenure—that is, in return for a certain service or payment. An armed knight, for example, might have to be provided to serve for a certain period each year. Periodic services tended to be commuted into fixed annual payments, which, under the impact of inflation, ceased to have much value over time. The “incidents,” or contingency rights, however, were assessed at current land value and remained important. For example, the feudal lord had the right to take a tenant's land if he died without heirs; if he did have heirs, the lord was entitled to compensation for exercising wardship and granting permission to marry.

      Succession (inheritance) to tenancies was regulated by a system of different “estates,” or rights in land, which determined the duration of the tenant's interest. Land held in “fee simple” meant that any heir could inherit (that is, succeed to the tenancy), whereas land held in “fee tail” could pass only to direct descendants. Life estates (tenancies lasting only for one person's lifetime) could also be created. Title to land was transferred by a formal ritual rather than by deed; this provided publicity for such transactions. Most of the rules governing the terms by which land was held were developed in local lord's courts, which were held to manage the estates of the lord's immediate tenants. The emergence of improved remedies in the King's Court during the late 12th century led to the elaboration and standardization of these rules, which marked the effective origin of the common law.

      The pace of change in the 13th century led to the passage of statutes to regulate matters of detail. The life tenant, for example, was forbidden in the 13th century to use the property in such a way as to damage it or to cause it to deteriorate unless the grant specifically allowed it, and the tenant “in tail” was forbidden to ignore the system of descent laid down for his property. Because a significant proportion of disputes in the common-law courts were related to the occupation of land, the land law was the earliest area of law to elaborate a detailed set of substantive rules, eventually summarized in the first “textbook” of English law, Littleton's Tenures, written by Sir Thomas Littleton (Littleton, Sir Thomas) and originally published in 1481.

      Primogeniture (primogeniture and ultimogeniture)—i.e., the right of succession of the eldest son—became characteristic of the common law. It was designed only for knight-service tenures but was inappropriately extended to all land. This contrasted with the widespread practice on the Continent, whereby all children inherited equal shares.

Development of a centralized judiciary

      The unity and consistency of the common law were promoted by the early dominant position acquired by the royal courts (court). Whereas the earlier Saxon witan, or king's council, dealt only with great affairs of state, the new Norman court assumed wide judicial powers. Its judges (clergy and statesmen) “declared” the common law.

      Royal judges went out to provincial towns “on circuit” and took the law of Westminster everywhere with them, both in civil and in criminal cases. Local customs (custom) received lip service, but the royal courts controlled them and often rejected them as unreasonable or unproved. Common law was presumed to apply everywhere until a local custom could be proved. This situation contrasted strikingly with that in France, where a monarch ruled a number of duchies and counties, each with its own customary law, as well as with that in Germany and Italy, where independent kingdoms and principalities were also governed by their own laws.

      This early centralization also diminished the reception of Roman law in England, in contrast to most other countries of Europe after the decline of feudalism. The expression “common law,” devised to distinguish the general law from local or group customs and privileges, came to suggest to citizens a universal law, founded on reason and superior in type.

      By the 13th century, three central courts— Exchequer, Common Pleas (Common Pleas, Court of), and King's Bench (Queen's Bench, Court of)—applied the common law. Although the same law was applied in each court, they vied in offering better remedies to litigants in order to increase their fees.

      The court machinery for civil cases was built around the writ system. Each writ was a written order in the king's name issued from the king's writing office, or chancery, at the instance of the complainant and ordering the defendant to appear in the royal courts or ordering some inferior court to see justice done. It was based on a form of action (i.e., on a particular type of complaint, such as trespass), and the right writ had to be selected to suit that form. Royal writs had to be used for all actions concerning title to land.

Bracton and the influence of Roman law

      Under Henry III (reigned 1216–72), an unknown royal official prepared an ambitious treatise, On the Laws and Customs of England. The text was later associated with the royal judge Henry de Bracton (Bracton, Henry de), who was assumed to be its author. It was modeled on the Institutiones (Institutes), the 6th-century Roman legal classic by Justinian I, and shows some knowledge of Roman law. However, its character—as indicated by the space devoted to actions and procedure, to the reliance on judicial decisions in declaring the law, and to statements limiting absolute royal power—was English. Bracton abstracted several thousand cases from court records (plea rolls) as the raw material for his book. The plea rolls formed an almost unbroken series from 1189 and included the writ, pleadings, verdict, and judgment of each civil action.

Early statute law

       Edward I (reigned 1272–1307) has been called the English Justinian because his enactments had such an important influence on the law of the Middle Ages. Edward's civil legislation, which amended the unwritten common law, remained for centuries as the basic statute law. It was supplemented by masses of specialized statutes that were passed to meet temporary problems.

      Four of Edward's statutes deserve particular mention. The first Statute of Westminster (Westminster, Statutes of) (1275) made jury trial compulsory in criminal cases and altered land law. The Statute of Gloucester (1278) limited the jurisdiction of local courts and extended the scope of actions for damages. The second Statute of Westminster (1285), a very long enactment, instituted four main changes: (1) it confirmed the estate tail in land, which had often been linked with the maintenance of titles of honour; (2) it made land an asset for purposes of paying judgment debts (i.e., those debts judged to exist by a court); (3) it liberalized appeals to high circuit courts; and (4) it improved the law of administration of assets on death. The Statute of 1290, generally referred to by its opening words, Quia emptores terrarum (“because sellers of lands”), barred the granting of new feudal rights, except by the crown, and made all land held in fee simple freely transferable by denying interference by relatives or feudal lords.

      In modern times the statutes issued prior to 1285 are sometimes treated as common law rather than statute law, as these laws tended to restate existing law or give it a more detailed expression. They explained what the law was, but they did not make an entirely new law. In fact, some authorities doubted whether governments had the right to change ancient customs at all. In addition, judges did not always adhere closely to the words of the statute but tried to interpret it as part of the general law on the subject. Prior to the rise of the House of Commons (Commons, House of), it also was difficult to distinguish acts of Parliament from the decisions or resolutions of the royal council, the executive authority. Some statutes were passed but never put into force, while others seem to have been quietly ignored. Moreover, it is clear that, well into the 14th century, the royal council—sometimes operating through the chancery—was able to dictate new remedies, such as a particular action on a case, and to preserve existing remedies, such as those protecting estates tail.

Growth of chancery and equity

      Since legal rules cannot be formulated to deal adequately with every possible contingency, their mechanical application can sometimes result in injustice. In order to remedy such injustices, the law of equity (or, earlier, of “conscience”) was developed. The principle of equity was as old as the common law, but it was hardly needed until the 14th century, since the law was still relatively fluid and informal. It has been said that what was truly new was not equity but law. As the law became firmly established, however, its strict rules of proof (evidence) began to cause hardship. Visible factors of proof, such as the open possession of land and the use of wax seals on documents, were stressed, and secret trusts and informal contracts (contract) were not recognized.

      Power to grant relief in situations involving potential injustices lay with the king and was first exercised by the entire royal council. Within the council, the lord chancellor—a leading bishop—led the meetings and, probably as early as the reign of Richard II (1372–99), dealt personally with petitions for relief. Eventually the chancellor's jurisdiction developed into the Court of Chancery (Chancery, Court of), whose function was to administer equity. Much of the work concerned procedural delays and irregularities in local courts, but gradually the power to modify the operation of the rules of common law was asserted.

      The chancellor decided each case on its merits and had the right to grant or refuse relief without giving reasons. Common grounds for relief, however, came to be recognized. They included fraud, breach of confidence, attempts to obtain payment twice, and unjust retention of property.

      Proceedings began with bills being presented by the plaintiff in the vernacular language, not Latin; the defendant was then summoned by a writ of subpoena to appear for personal questioning by the chancellor or one of his subordinates. Refusal to appear or to satisfy a decree was punished by imprisonment (prison). Because the defendant could file an answer, a system of written pleadings developed.

Inns of Court and the Year Books

      During Edward I's reign the office of judge was transformed from a clerical position into a full-time career. Admission to the bar (i.e., the right to practice as a barrister before a court) was made conditional on the legal knowledge of the applicant. Law thus began to emerge as a profession, which required permanent institutions and some kind of organized legal education.

      As the legal profession grew, the more experienced barristers were admitted to the dignity of serjeant-at-law and later banded together with the judges, who were appointed from their ranks, at Serjeants' Inns in London. There, burning legal problems were informally discussed, and guidance was given to all concerning the decisions of actual or likely cases. The four Inns of Court (Gray's Inn, Lincoln's Inn, Inner Temple, and Middle Temple) evolved from the residential halls of junior barristers to become the bodies officially recognized as having the right to admit persons to the bar. Education consisted of attending court, participating in simulated legal disputes (moots), and attending lectures (readings) given by senior lawyers.

      Bracton's work was adapted for purposes of study for a time, but it soon became outdated. Bar students therefore had to make notes in court of actual legal arguments in order to keep abreast of current law practices. These notes varied widely in quality, depending on the ability of the notetaker and the regularity of his attendance, and starting in about 1280 they seem to have been copied and circulated. In the 16th century they began to be printed and arranged by regnal year, coming to be referred to as the Year Books.

      The Year Book reports were usually written in highly abbreviated law French. They did not always distinguish between the judges and barristers and often simply referred to them by name. The actual judgment also was often omitted, the interest centring rather upon the arguments presented by barristers in court. Although previous decisions were not generally binding, great attention was paid to them, and it appears that the judges and barristers referred to earlier Year Books in preparing their cases. Thus, case law became the typical form of English common law.

      The dynastic Wars of the Roses (Roses, Wars of the) in the latter part of the 15th century led to a practical breakdown of the legal order. Powerful hereditary aristocrats in the country, backed by private armies, and dominant commercial families in the towns were beyond the effective reach of the royal writ. When legal proceedings were possible, they were often manipulated or frustrated by the crown's “overmighty subjects,” who intimidated and corrupted justices, sheriffs, juries, and witnesses.

The rise of the prerogative courts (prerogative court)

      The accession of Henry VII in 1485 was followed by the creation of a number of courts that stood outside the common-law system that Henry II and his successors had instituted. In part, this mirrored wider developments in Europe that were associated with the new learning of the Renaissance, which promoted the growth of bureaucratic written process as opposed to the oral proceedings of the customary common law. The newer courts were described as prerogative courts (prerogative court) because they were identified with the royal executive power, though some of them had a statutory origin. Thus, the Council of the North at York was set up by statute in 1537, and the Council of Wales and the Marches at Ludlow were confirmed by statute in 1543, though both had been preceded by older prerogative courts in those “frontier” regions. The Court of Requests (Requests, Court of) was given regular status by an administrative action in 1493. The Court of Star Chamber (Star Chamber, Court of), once thought to have been given its authority by a statute of 1487, is now believed to have evolved from the royal council, which began acting as a judicial committee in the early 16th century. All these courts competed for business with the existing common-law courts, which led the latter to develop new remedies that proved more effective and expeditious than those previously available, particularly with regard to the action of trespass.

      In the Court of Requests, which had counterparts in France, the costs of procedure were lower than in common-law proceedings; it was designed to accommodate small civil claims by the poor. The judges of the court were styled masters of requests, and they had many other duties, which often caused delays. The court flourished in the 17th century until the Civil Wars (English Civil Wars) (1642–51), when the procedure by which it operated was abolished. Its example of offering a simple, cheap procedure was imitated by several statutory courts that were set up in towns in later times and were also known as courts of requests.

      Whereas the common-law courts punished “hanging crimes,” such as murder (homicide) and robbery (theft), the Star Chamber dealt with more-sophisticated offenses, such as forgery, perjury, and conspiracy. Fines and sentences (sentence) of imprisonment were the usual punishment. Common-law judges, lay peers, and bishops sat on this court, which also exercised civil jurisdiction. It lost its original popularity when the early Stuart (Stuart, House of) kings used it to stifle political opposition, and its name eventually became synonymous with repression. It was abolished in 1641, and most of its jurisdiction was absorbed by the common-law courts in 1660.

      The rather specialized High Court of Admiralty developed under royal prerogative in the 14th century; a statute of 1391 prohibited it from meddling in cases not arising at sea. In Tudor (Tudor, House of) and early Stuart times, however, it exercised a wide commercial jurisdiction. After the Civil Wars it was confined exclusively to trying maritime disputes.

The 16th-century revolution

      Throughout Europe, the 16th century was a period of considerable change in the law. In part a reaction by the learned against the law of the past—which was seen to be too dependent upon ancient Roman models or local Germanic custom—the changes usually took the form of an explicit commitment to improved procedures, above all written rather than oral. One consequence was the increased influence of universities and university-trained lawyers. In England, the old customary law applied by the central courts at Westminster was too firmly entrenched to be lightly overthrown, but even here the development of written pleadings and new, speedier remedies had a transforming effect. The aforementioned prerogative, or conciliar, courts, together with the Court of Chancery, competed with common-law courts for jurisdiction over the same cases and followed a written procedure modeled after that still being used on the Continent. Roman law and canon law were taught at the Universities of Oxford and Cambridge, which awarded doctorates to the practitioners in these courts.

      One of the accusations reportedly made against Thomas Wolsey (Wolsey, Thomas, Cardinal), the cardinal and lord chancellor who fell from favour in 1529, was that he planned to introduce Roman law into England; Wolsey did appoint many clergy to the Council of the North and as justices of the peace (justice of the peace). The 19th-century English legal historian Frederic William Maitland (Maitland, Frederic William) discussed this legal crisis in his work English Law and the Renaissance (1901). Maitland ascribed the survival of the common law in part to the solid front presented by the Inns of Court, which trained lawyers practically and not theoretically. The English law tradition depended not on abstract scholarly commentaries but on detailed judicial rulings about specific points of law arising in practice.

      The influence of Roman-law ideas, however, was probably greater than generally admitted. The actions of trespass and disseisin (dispossession; see adverse possession) had Roman analogies, as did the liabilities of those following the so-called “common callings” of innkeeper, carrier of goods, and stable keeper. The equitable remedy of injunction had analogies in canon law, and the law of redemption of mortgages may have been related to the usury laws, which forbade making excessive profits from loans. The law of trusts (trust) and deceit resembled the breach of faith of the church courts. Continental mercantile law, which contained Roman-law elements, was absorbed into English law as it stood. Continental law also contributed to some of the rules of contract, such as the effect of mistake, and the Roman concept of fault played a part in the law of negligence. Many old European legal ideas, in fact, survived longer in England—where they escaped being eliminated in codifications—than in Europe.

 An account of the development of common law in the Tudor-Stuart period would be incomplete without mention of Sir Edward Coke (Coke, Sir Edward), who combined a distinguished career as a barrister and a judge and produced a wealth of legal writings. In 1606 he risked removal from the office of chief justice by challenging the exaggerated claims of the royalist party to prerogative powers outside the common law. He disapproved of legislation by proclamation, of dispensation from the law in individual cases, and of the mushrooming jurisdictions of the prerogative courts. He helped draft the Petition of Right (right, petition of) in 1628.

      Coke's 11 volumes of Reports appeared between 1600 and 1615, and two posthumous volumes followed. Coke commented rather than reported, but he was careful to supply a copy of the court record of each case. As the only formal series of collected law cases available at the time, his reports formed the main source for the citation of cases for many years. His four volumes of Institutes of the Lawes of England, published between 1628 and 1644, dealt with the law of real property (real and personal property) (Coke on Littleton), medieval statutes, criminal law (pleas of the crown), and jurisdiction of the courts.

      Coke was no objective historian but an open advocate of the common law. Though he was old-fashioned and at times in error, his greatest works restated the common law in acceptable form and did much to preserve it.

Further growth of statute law

      The Tudors made use of proclamations by the king to invoke emergency measures, to establish detailed regulations, especially on economic matters, and to grant royal charters to trading companies. Parliament passed laws of a political nature, such as those enforcing the king's supremacy over the newly established Church of England (England, Church of). Statutes also regulated imports and exports, controlled farming, and defined what was unfair competition. A law of 1562–63 regulated apprenticeships and provided for annual wage fixing by magistrates in accordance with the cost of living.

      There were other important statutory innovations during these years. The Statute of Monopolies of 1623 confirmed that monopolies were contrary to common law but made exceptions for patentable inventions, and a statute of 1601 became the basis of the privileges enjoyed by charitable trusts. Additionally, the series of Poor Laws (Poor Law) enacted in the late 16th century remedied the neglect of the poor caused by the dissolution of the monasteries.

      In 1540 legal actions to recover land were subjected to time limits. However, in 1623–24 the principle of limitation of actions by lapse of time was introduced into the law of contract and tort.

      During the Commonwealth (1649–60), many reform projects were drafted. Although they anticipated 19th-century reforms, none of them were carried out. These reforms included supplying counsel to prisoners, modernizing the land and law procedure, and permitting civil marriages.

      The outstanding enactment of the later Stuart period was the Statute of Frauds of 1677. As a response to the growth of literacy and the prevalence of perjury and fraud, wills (will) and contracts for the sale of land or goods (of more than a certain amount) were required to be in writing. Though drafted by eminent judges, the statute was to require endless interpretation.

Consolidation of equity

      Although one eminent contemporary observer, legal historian John Selden (Selden, John), regarded the fate of a lawsuit in chancery as varying with the chancellor's personality, the types of suits that would be granted relief had eventually become fairly clear. precedent was being followed, and law reports of equity decisions and books on equity began to be published.

      In 1615 King James I declared that the chancery was to retain its traditional superiority over the common-law courts, but only in areas in which its authority was well recognized. If the applicability of equity was in doubt, the common law was to be followed.

      The main development in this period was in the law of trusts (trust) (see property law). In medieval England from the 14th century, most land was held “to uses” (use) (i.e., by nominees for the true owners). This situation may have been partly due to devices used to evade feudal taxation, but it also enabled wills of land to be made. “Death duties” were payable if a man died while he was the legal proprietor. However, if the land was transferred to another person prior to death, these could be avoided. Wills of land were not generally allowed before 1540, but the use of land could be transferred to another person while the owner was still alive, as long as the transferee observed the owner's wishes regarding the land while the owner lived. The beneficiary of such a use or trust usually stayed on the land as apparent owner, though the trustee held the legal title. Because the common-law courts recognized the trustee as the only owner, a beneficiary had to go to chancery in order to enforce his rights. A statute of Richard III (reigned 1483–85), however, allowed the beneficiary to transfer the property, and in 1536 the Statute of Uses eliminated the middleman and revested the legal title in the beneficiary. This was done to ensure that the crown maximized its income from feudal taxation: the beneficiary was now the legal owner of the land and liable to the feudal dues, as he had been before the development of the device. Although old-style uses could not be created for some time following the statute, the old use was revived from the late 16th century as the modern trust in chancery, first for trusts involving money and leases and finally for trusts of land itself. The spur was the desire to separate the legal and beneficial titles, especially when the beneficiary was young or inexperienced. But the trust was adapted to many other ends, such as giving property to clubs and other unincorporated bodies and to churches.

The modernization of common law in Great Britain

Influence of Blackstone

      Of extraordinary influence in the development of common law and in its dissemination to other parts of the world was the most famous of English jurists, Sir William Blackstone (Blackstone, Sir William). He was born in 1723, entered the bar in 1746, and in 1758 became the first person to lecture on English law at an English university.

      His most influential work, the Commentaries on the Laws of England, was published between 1765 and 1769 and consisted of four books: Of the Rights of Persons dealt with family and public law; Of the Rights of Things gave a brilliant outline of real-property law; Of Private Wrongs covered civil liability, courts, and procedure; and Of Public Wrongs was an excellent study of criminal law.

 Blackstone was far from being a scientific jurist and was criticized for his superficiality and lack of historical sense. The shortcomings of the Commentaries in these respects, however, were offset by its style and intelligibility, and lawyers and laymen alike came to regard it as an authoritative exposition of the law. In the following century, the fame of Blackstone was even greater in the United States than in his native land. After the American Declaration of Independence (1776), the Commentaries became the chief source of knowledge of English law in the New World.

Reforms since the 19th century

Bentham

 Following the social turmoil of the French Revolution (1789) and the economic upheaval of the Industrial Revolution, there were many demands for reforms to modernize the law. The most significant figure in the reform movement was the English utilitarian (Utilitarianism) philosopher Jeremy Bentham (Bentham, Jeremy), who was prepared to reform the whole law along radical lines. A brilliant student, Bentham disliked the picture of the law that he had heard presented in Blackstone's lectures. In 1769 he entered the bar, but, since he was living on an inheritance, he never found it necessary to enter practice. He worked to make law less technical and more accessible to the people, but he was slow to complete or publish his writings; his basic work, An Introduction to the Principles of Morals and Legislation, did not appear until 1789.

      Bentham attacked legal fictions and other historical anomalies. He advocated two basic changes in the legal system: (1) in order to achieve the greatest happiness for the greatest number, legislators—rather than courts—should make the law; and (2) the aims of law should vary with time and place.

      The fame of the Principles spread widely and rapidly. Bentham was made a French citizen in 1792, and his advice was respectfully received in most of the countries of Europe and in the United States. Although he wanted most of all to be allowed to draw up a legal code for his own or some foreign country, his practical influence was far more indirect and derived largely from the diffusion of utilitarian ideas during the 19th century.

Changes in procedure and criminal law

      In England the old framework of the separate forms of action in civil cases was replaced in 1852 by a new system of uniform writs of summons, and liberal amendment of pleadings was permitted. Fixed dates were established for trials. In 1933 jury trial was ended in civil cases, except in libel (see defamation) and a few other actions. A series of evidence acts simplified civil proof. Far-reaching reforms of civil procedure were introduced in 2000 as a result of a report by a judge, Lord Woolf, who was appointed lord chief justice to implement the changes called for in his report. These principally consisted in simplifying procedure, but language was also altered, so that plaintiffs became claimants and the use of old, often Latin, terms and phrases was abandoned in favour of plainer English expressions.

      A major trend in criminal procedure since the early 19th century has been better protection of the rights of the accused. Since 1836 the accused has been entitled to counsel, and since 1898 he has been allowed to testify on his own behalf. In 1903 provision for the state to pay for defense was made—it has since been expanded—and in 1907 the right of appeal against criminal convictions was created. In 1967 verdicts by a majority of the jury were made possible, and restrictions were imposed on press coverage of preliminary hearings. Further changes to criminal procedure have frequently been discussed, including the restriction of jury trial to certain types of cases. This particular suggestion, however, has proved politically undesirable in most cases—except in Northern Ireland, where criminal cases involving suspected paramilitaries were tried before judges alone from 1973 to 2007.

      The 19th century saw the enactment of a series of statutes that codified the part of criminal law dealing with individual crimes, apart from homicide. Basic ideas have changed little, other than the fact that some modern statutes have imposed responsibility without fault and that corporations (corporation) can now be held responsible for the acts of their management.

      The rules of legal insanity were laid down in the 19th century and supplemented in 1957 by the limited defense of “ diminished responsibility.” capital punishment was gradually ended for most felonies (felony and misdemeanour) and was finally eliminated for murder by the Homicide Acts of 1957–65. In 1968 a new Theft Act, amended in 1978, replaced the old idea of larceny by a broader concept that resembles the Roman delict (offense) of theft. Experimentation has led to new remedies, one of these being the suspended sentence, which has to be served only if a further crime is committed.

Reorganization of the courts

      The jurisdiction of the church courts over the laity ended in 1857, when secular divorce and probate courts were set up. These merged into the High Court of Justice in 1875 as a result of the Judicature Acts of 1873–75 (Judicature Act of 1873), which reformed the civil courts. The Judicature Acts were much more than a regrouping and renaming of courts; they attempted to fuse law and equity by making available legal and equitable remedies in all divisions of the High Court and by providing that the equitable rule should prevail when conflicts arose. Common law and equity nevertheless preserved their separate identities, partly because of the different subject matter with which they often dealt and partly because lawyers persisted in maintaining the distinction.

      In the late 19th century the three central courts of common law were amalgamated as the Queen's Bench Division (Queen's Bench, Court of), which to this day continues to try suits for damages. Since 1875 cases have been tried by a single judge (sometimes, before 1933, with a jury), not by a full bench of judges.

      After it became a division of the High Court in 1875, the chancery not only dealt with equity suits but also administered the voluminous legislation on property, bankruptcy, succession, copyrights (copyright), patents (patent), and taxation. Contested probate cases were transferred to the chancery by the Courts Act of 1971. The Family Division of the High Court, dealing with matrimonial cases and issues relating to children, was created at the same time.

      Before the Courts Act, criminal cases were tried two or three times a year at assizes (assize) (sessions) of the High Court or four times a year at quarter-sessions of magistrates in the provinces. A system of permanent provincial crown courts has replaced these. Civil assizes were replaced by allowing the High Court to sit at certain cities. Small civil cases, tried at statutory county courts since 1846, are now regulated by an act introduced in 1984.

      A remarkable feature of English criminal justice, as compared with most European systems, has been the continuing role of lay magistrates, who remain important despite the appointment of paid, legally trained magistrates, now known as district judges, in London and some of the larger cities. An important aspect of the magistrates' work has been their jurisdiction over young offenders, for whom special juvenile courts (juvenile court) were first set up in 1908. The report of a royal commission on justices of the peace in 1948 strongly defended the position of lay justice against public criticism; its cautious recommendations as to the appointment of justices and as to the organization of their courts were largely put into effect by the Justices of the Peace Act (1949) and the Magistrates' Courts Act (1980). The Criminal Justice Administration Act (1962) extended the power of justices of the peace to try indictable offenses summarily. A series of later statutes rendered the procedure more flexible, made detailed provision for penalties and their execution, and added a number of new offenses. In 1964 elementary judicial training for lay justices was introduced; this is now regulated by the Judicial Studies Board. In 1994 the local committees that appoint lay magistrates were revised and made more accountable. Magistrates are now provided with immediate and frequently revised guidance and training through the Internet. These developments since 1948 show both the persistence in English law of ancient institutions and a preference for reforming rather than totally abolishing them.

      A modern appellate court for civil cases in the High Court was set up in 1830 but was replaced in 1875 by a Court of Appeal (Appeal, Court of) consisting of special appellate judges. In 1907 a Court of Criminal Appeal was established, but it was merged into the Court of Appeal in 1966. A divisional court hears appeals from magistrates on points of law. A final appeal, subject to conditions, can be made to the House of Lords (Lords, House of), whose judicial role as a court of final resort dates from the 17th century.

Public law

      In the early part of the 20th century, it could be asserted that there was no public law in England in the sense of a set of rules regulating the administration of public affairs, which differed from those operating in the private sphere. To some this was a source of pride, contrasting with the law in countries with a more highly developed centralized administration. But, in effect, it disguised the degree to which the government in the United Kingdom was unfettered by legal norms. Beginning with the regulation of local government in the first part of the century and marked by famous if ineffective challenges to the powers exercised by the executive during two world wars, a body of public-law remedies was slowly developed to challenge the executive's freedom to act or at least to call it to account for its actions. Their distinctive features were given greater clarity following the United Kingdom's entry into the European Economic Community (European Community) (now the European Community, which is embedded in the European Union [EU]) in 1973; within the EU a range of remedies, largely modeled on those created by the French administrative courts, serve to hold institutions of both the EU and national authorities to account for acting in excess of the powers granted to them by the constitutive treaties of the Community. By the 1980s, it was being said that a new branch of English law (European law) had been created, though by the early 21st century it was rather perceived that a process of assimilation of wider European ideas into the English common law was developed (see also European law).

Reform in private law

      Since 1965 a permanent Law Commission has been charged with keeping the law under constant review and making proposals for change. Although it has had some notable successes in producing changes to the law regarding corporate manslaughter and in the creation of third-party rights in contract, its activities are often stifled by the unwillingness of the government to find parliamentary time for technical reforms without political content. Thus, neither a proposal to codify the general provisions of criminal law nor reforms to the law regarding non-pecuniary loss in cases of personal injury have been implemented.

      Wills are regulated mainly by a statute of 1837 (amended in 1982), and the freedom to disinherit has been curtailed by a series of family provision acts, thereby assimilating the common law to those systems, like that in Scotland, that have always required provision to be made for the family. Title to land is subject to a system of registration that has been gradually introduced under an act of 1925. intestate succession (i.e., in the absence of a valid will) for all kinds of property was unified in the same year. The law of leases has been modified by social legislation such as the numerous Rent (control) Acts, which protect residential tenants, and by a statutory system of leasehold enfranchisement, which allows holders of land under long leases to purchase the freehold. The terms of trusts can be modified by the chancery (since 1958), and a wider range of trustee investments have been allowed since 1961.

      Grounds for divorce were enlarged by a number of 20th-century statutes, leading to the broad “breakdown of marriage” approach of the Divorce Reform Act of 1969. This approach was taken further in the Family Law Act of 1996, which removed the requirement for divorce that one of the parties has committed adultery or some other offense against the other and which stressed the role of mediation in resolving family disputes. Under this legislation a marriage may be terminated expeditiously when the partners are in agreement.

      After several piecemeal laws addressed trade unions (trade union), a more comprehensive—though controversial—Industrial Relations Act was passed in 1971, requiring registration of unions and arbitration of disputes. Although the system established by this statute fell into political disfavour following several bitter trade disputes in the 1970s, it paved the way for the greater regulation introduced in the 1980s. From the 1990s, a series of comprehensive measures, including the Employment Rights Act (ERA) of 1996, have created a large degree of protection for employees.

      In the field of tort, manufacturers' liability to consumers was established by case law in 1932 and later strengthened by legislation. This liability in negligence has in effect taken over the greater part of tort litigation. Liability in libel has been cut down by many statutes.

      Commercial law (business law)—with the Bills of Exchange Act (1882), Sale of Goods Act (1893 and 1979), the Unfair Contract Terms Act (1977), and consumer protection statutes in 1965 and 1974—has become primarily the domain of legislation. arbitration too is regulated by statute.

      The Human Rights Act 1998 marked an important change in the orientation of the common law away from a law of duties and toward a law of rights. The act effectively makes the provisions of the European Convention on Human Rights a matter of domestic law, enabling the English courts to give relief in cases that otherwise would have to be taken to the European Commission of Human Rights or its court, the European Court of Human Rights. Although the greatest fears of its detractors have not been realized, the act has caused public bodies to adjust their procedures to protect citizens' rights, since they can be made to pay compensation in cases where they fail to do so. The right to protect life has been held to permit courts to disguise the identity of both witnesses and the accused in extreme cases but, on the other hand, has not been extended to cover a right to take one's own life so as to limit the liabilities of those who may assist in the suicide. The right to protection of personal freedom has led to the challenging of excessive prison sentences (sentence) and to the alteration of the previous practice of permitting the home secretary to fix the length of time (the “tariff”) actually served in prison by someone sentenced to a life term. In some cases, courts in the United Kingdom are still reluctant to extend their understanding of human rights protection; litigants who have exhausted their remedies in English courts can still pursue a claim before the European human rights tribunals, as in a case that established the right of transsexuals (transsexualism) to marry and required a legislative change to English law (the Gender Recognition Act 2004).

The development of common law in the United States and other jurisdictions

      The first English settlers on the Atlantic Seaboard of North America brought with them only elementary notions of law. Colonial charters conferred upon them the traditional legal privileges of Englishmen, such as habeas corpus and the right to trial before a jury of one's peers. However, there were few judges, lawyers, or lawbooks, and English court decisions were slow to reach them. Each colony passed its own statutes, and governors or legislative bodies acted as courts. Civil and criminal cases were tried in the same courts, and lay juries enjoyed wide powers. English laws passed after the date of settlement did not automatically apply in the colonies, and even presettlement legislation was liable to adaptation. English cases were not binding precedents. Several of the American colonies introduced substantial legal codes, such as those of Massachusetts in 1648 and of Pennsylvania in 1682.

      By the late 17th century, lawyers were practicing in the colonies, using English lawbooks and following English procedures and forms of action. In 1701 Rhode Island legislated to receive English law in full, subject to local legislation, and the same happened in the Carolinas in 1712 and 1715. Other colonies, in practice, also applied the common law with local variations.

      Many legal battles in the period leading up to the American Revolution (1775–83) were fought on common-law principles, and half of the signatories of the Declaration of Independence were lawyers. The Constitution of the United States itself uses traditional English legal terms.

      After 1776 anti-British feelings led some Americans to advocate a fresh legal system, but European laws were diverse, couched in foreign languages having unfamiliar turns of thought, and unavailable in textbook form. Blackstone's Commentaries, reprinted in America in 1771, was widely used, even though new English statutes and decisions were officially ignored.

 In the 1830s two great judges, James Kent (Kent, James) of New York and Joseph Story (Story, Joseph) of Massachusetts, produced important commentaries on common law and equity, emphasizing the need for legal certainty and for security of title to property. These works followed the common-law tradition, which has been fundamental in the United States except in Louisiana, where French civil law has survived.

      The common law was also adopted in other areas settled by the British. In Australia, New Zealand, British Canada, and many colonies in Africa, the common law was applied without any rival. But elsewhere, notably in India, South Africa, and Quebec, allowance had to be made for existing legal systems. In the 19th century there were notable experiments in India with codifying the common law. Until the 20th century there was little independence in the legal systems of the Commonwealth; the Judicial Committee of the Privy Council, sitting in London, acted as the supreme court of appeal for all overseas jurisdictions. More recently, as a result of political independence, Commonwealth countries have rejected the jurisdiction of the Privy Council, with the consequence that significant differences have developed between jurisdictions even in areas of traditional common law.

American innovations

      The American states viewed law as a cementing force and used it to facilitate cooperation in the face of the hazards of nature and other difficulties arising in the development of the new continent. Special laws were developed to deal with timber, water, and mineral rights. Simple procedures were followed. Dogma was rejected in favour of personal experience and experiment, and old decisions soon became outdated. The pioneer spirit favoured freedom and initiative and distrusted central authority and a paternal government. Homespun local justice was preferred, as was the common sense of the local jury. For a time, some of the colonies even tried to base their law on the Bible. But, even when English law reasserted itself, many of its institutions were rejected. Upon death intestate, for example, all of the children inherited land and not just, as in England, the eldest son. Freehold title was the rule, not long leases under landlords. Church courts did not exist.

Growth of statute law and codes

      After the American Revolution, a drive to replace judge-made law with popular legislation was revived. In 1811 Jeremy Bentham (Bentham, Jeremy) proposed a national civil code to Pres. James Madison (Madison, James), but his proposal was premature. In the mid-19th century, the legal reformer David Dudley Field (Field, David Dudley) presided over the drafting of several codes and campaigned vigorously for the systematic, rational codification of United States law. Except for a code of civil procedure (procedural law), which was widely copied, Field's codes found little acceptance in state legislatures. Field's civil code was adopted by five states, including California and New York, but the common-law tradition was so strong in these jurisdictions that the civil code became just another statute. It was read against the background of—and supplemented by— existing case law, rather than being seen as a complete set of authoritative starting points for legal reasoning, as were the Continental civil codes. Louisiana, whose legal system is a hybrid of civil- and common-law elements, is the only American state that has a code in the civil-law sense. Despite the failure of the codification movement, U.S. law became increasingly statutory, so that by the late 20th century legislation predominated over judge-made law.

      U.S. statutes are not construed so narrowly as those in England, and there is less reluctance to change the older law. Statutes are also regularly revised; for example, New York state has had a Law Revision Commission since 1934.

Equity and probate

      In 18th-century England the Court of Chancery (Chancery, Court of) administered equity, and the church courts handled the probate of wills. In the American colonies, the governor and his council acted as a court of equity. For a time after independence, equity was suspect as a remnant of royal prerogative, but it has come to be generally applied by the same court as the regular law. Although U.S. common law is more flexible than English law, and the need for equity is less, important remedies have nevertheless been developed within the system. Probate, with a few exceptions, is usually a matter for the regular courts (court).

Federal and state judicial systems

      State courts try 90 percent of all civil and criminal cases. Local magistrates may sit on county or district courts. One appeal is always given, and two levels of appeals exist in many states. The highest court is usually called the supreme court of the state, but this varies. In New York state, for example, the Supreme Court is a trial court, and the highest court is the Court of Appeals.

      The U.S. Constitution established a federal Supreme Court (Supreme Court of the United States), and the 1789 Judiciary Act provided for federal district courts (United States District Court) and circuit courts. The plan for inferior courts has undergone changes from time to time, notably in 1891, when circuit courts of appeal were established, and in 1911, when the old circuit courts were abolished.

      Most federal law is statutory and enforced by federal courts. Laws concerning taxes, labour (labour law), securities (security), shipping (maritime law), interstate commerce, antitrust (antitrust law) regulations, patents (patent), and copyrights (copyright) fall into this category. Following the decision in Madison (Marbury v. Madison) (1803), the Supreme Court became the ultimate authority for determining the conformity of all legislation with the federal Constitution, which guarantees many fundamental rights.

      To ensure the fair treatment of out-of-state citizens or of corporations (corporation) incorporated elsewhere, federal courts can try cases involving a diversity of citizenship. In such cases they act as if they were state courts, however, being bound by state statutes since 1842 and by state interpretations of common law and equity since 1938. Federal procedure is followed, but state rules on vital matters, such as statutes of limitations, are enforced.

      Federal courts also try claims by and against the United States, such as cases undertaken to protect federal assets. In the absence of statutory provisions for such cases, a “federal common law” is applied.

Personal and property rights

      The guarantees of due process of law given in Magna Carta in 1215 and the British Bill of Rights (Rights, Bill of) of 1689 are reflected in the first 10 amendments to the federal Constitution, which were passed in 1791 and are known as the Bill of Rights (Rights, Bill of). Since the passage of the Fourteenth Amendment in 1868, the rights of life, liberty, and property have been protected from deprivation by both the states and the federal government without due process of law; this has tended to shield private property from government regulation and private contracts from government interference. (It should be remembered, however, that even after the abolition of slavery following the American Civil War and despite these constitutional safeguards, black men did not have equal rights with white men, and women had far fewer legal rights than men.) The use of property, however, is increasingly restricted by zoning laws and health and safety measures, and the acquisition of property for public purposes may be justified under the doctrine of eminent domain (the power of the government to take private property for public use without the owner's consent upon payment of compensation).

      Since the late 1930s, the power of the Congress (Congress of the United States) to regulate the economy under its authority to oversee interstate commerce has generally been upheld by the Supreme Court. State legislation is, as a rule, also held to be constitutional in this area. Minimum-wage (minimum wage) laws and the right to collective bargaining in industry are recognized as well.

      Since the 1950s, the emphasis in constitutionality cases has shifted to human rights. The requirement of equal protection of the laws and the Civil Rights Act of 1866 led to the Supreme Court's ruling in Board of Education of Topeka (Brown v. Board of Education of Topeka) (1954) that racial segregation (segregation, racial) in public schools is unconstitutional and to later rulings against using public funds for segregated private schools. The Federal Civil Rights Act of 1964 applies not only to official laws and actions but also to the conduct of private citizens. Thus, no discrimination on the basis of race, sex, religion, or national origin is allowed in places of public entertainment or resort or in employment practices by larger firms.

      Since 1962 the Supreme Court has insisted on a regular redrawing of electoral districts to give each vote roughly the same value (seat reapportionment; seeCarr (Baker v. Carr)). It has also interpreted the constitutional prohibition of the establishment of a state religion to render school prayer and religious instruction illegal. In 1971 freedom of the press was held to justify The New York Times newspaper in publishing articles based on the so-called Pentagon Papers, a classified history of U.S. military involvement in Indochina.

Comparisons of modern English, American, and Commonwealth law

      The legal systems rooted in the English common law have diverged from their parent system so greatly over time that, in many areas, the legal approaches of common-law countries differ as much from one another as they do from civil-law countries. Indeed, England and the United States have so many legal differences that they are sometimes described as “two countries separated by a common law.” The most striking differences are found in the area of public law. England has no written constitution and restricts judicial review, whereas every court in the United States possesses the power to pass judgment on the conformity of legislation and on other official actions to constitutional norms. Throughout the 20th century, many areas of U.S. law were “constitutionalized” by the increasing exercise of judicial power. Other factors that account for much of the distinctiveness of public law in the United States include its complex federal system and its presidential, rather than parliamentary, form of government. In the area of private law, however, family resemblances between the common-law systems are much greater. Yet even there, despite broad basic similarities, the common-law countries have developed distinctive variations over time.

Personal law

      The law of personal status (nationality, capacity, domicile, etc.) has been transformed by the advancement of the principle of equality of the sexes. In the area of divorce law, the intense legislative activity of the 1960s and '70s left most common-law countries with systems of “mixed grounds” for divorce. One can obtain a divorce based upon the fault of the other spouse or upon some no-fault ground, such as separation or breakdown of the marriage. A minority of American states have eliminated fault grounds entirely. The major differences between common-law systems appear in the legal treatment of the economic consequences of divorce. Most common-law countries follow the English model that permits judges to use their own discretion in reallocating the property and income of the spouses in a way that seems fair, whereas a minority of American states adhere to the principle of equal rather than discretionary division of assets. A number of states have introduced forms of civil union or civil partnership for same-sex couples, giving them many or all of the same rights granted to heterosexual couples under state (though not federal) law. Furthermore, same-sex marriages (same-sex marriage) have been recognized by state law in Massachusetts since 2004. In the United Kingdom, the Civil Partnership Act of 2004 afforded homosexual couples the same rights and responsibilities afforded to heterosexual couples in a civil marriage.

Property and succession

      The basic principles of property and succession are much the same everywhere, but the newer countries have special laws on forests, mines, and water rights. In Australia, for example, the crown reserves all mineral rights to itself. The transfer of land in England is governed by a system of title registration. In Canada and the United States, the separate deeds are recorded and title insurance is widely used to protect the purchaser. In England since the 1960s, there has been a significant development of the law relating to restitution, the right to recover property mistakenly transferred to another. Owing nothing to statute and much to the writings of academic lawyers, this demonstrates the continued liveliness of the common-law tradition of decision-based legal development.

      Succession (inheritance) on intestacy is broadly similar throughout common-law countries but varies everywhere in detail. The widow, for example, may get more in one country and the children more in another. All children of both sexes generally take equal shares. In regard to intestate succession, nearly all American states protect the surviving spouse against disinheritance by securing to him or her a fixed indefeasible share of the decedent's estate. In England and most Commonwealth countries, however, not only the spouse but also children and certain other dependents of the deceased are permitted to petition the court for discretionary financial provision out of an estate if, in the judgment of the court, the testator did not make reasonable provision for them.

      In most American states and some Canadian provinces, there are homestead laws, which protect the family house or a certain minimum sum of money from the claims of creditors.

tort law

      Tort law (i.e., the law relating to private civil wrongs) is largely common law, as opposed to statute-based law, in England, Canada, and the United States. Several major reforms have been introduced along the same lines in different countries. Allowing claims by dependents of persons tortuously killed and removing the immunity of the crown or government or charitable institutions from tort claims provide examples. The liability of manufacturers to the ultimate consumer was first laid down by U.S. and then by English judges. After a slow start (compared with Europe), the protection of employees proceeded apace in the United States in the second half of the 20th century so as to cover almost any accident occasioned in the workplace, however unrelated to the employer's business or fault. According to some legal scholars, the U.S. system of tort liability had become, in effect, a general substitute for a welfare system. In the wider world also, the growth of insurance subtly affected tort law by shifting liability to those most able to pay for coverage. A further move—which threatens to undermine the viability of the whole tort system—is the growth of what some perceive as a “compensation culture,” in which individuals feel entitled to sue for any of a wide variety of alleged harms.

      In the field of libel, U.S. practice is less strict than the English. In the United States a public figure cannot sue for honest but unfair and untrue criticisms of his activities, whereas in England published facts must be true and comments fair. In some Australian states truth is not necessarily a defense to an action.

      A notable U.S. tort is interference with privacy (privacy, rights of). Examples include a stranger's using one's photograph for advertising without permission, using “bugging” (i.e., electronic eavesdropping devices) in one's home or searching it, or taking photographs of persons in embarrassing situations. In England privacy is still seen as related to commercial considerations; it is possible to buy privacy but not to enjoy it as a right.

Contracts (contract)

       contract law is basically similar in the common-law countries. The most interesting difference relates to the question of enforcement of contracts by third parties who are not actually parties to the contract but are persons for whose benefit the contract was made. English law excludes such rights, except in an occasional statute. The Indian Contract Code of 1872 generally allows it, as does U.S. state law. In all countries, legislation now protects consumers against the power of large commercial corporations and regulates the operation of credit transactions.

      English law has largely repealed the laws requiring written evidence of ordinary contracts, sometimes to the surprise of consumers. Written evidence is often called for in the United States.

      The various areas of special contracts, such as those applying to employment, sale of land, and agency, are broadly similar everywhere but are regulated by local legislation and by a wealth of labour legislation.

criminal law and procedure

      In regard to criminal law, the substance of the law is much the same throughout the common-law countries. In both the United Kingdom and the United States, the 20th century can be largely characterized as a period during which it was thought that undesirable behaviour could be eliminated by rigorous law enforcement. In the early part of the century, this led to the criminalization of much personal behaviour—including some sexual practices, gambling, and the use of alcohol and drugs—that was previously beyond the reach of the law, the most noteworthy example being the prohibition of alcoholic beverages in the United States from 1919 to 1933. At the beginning of the 21st century, there were signs that some such behaviours were being treated as medical or psychological problems rather than as criminal ones.

      The death penalty (capital punishment), which had been slowly removed in most U.S. states since the end of the 19th century, was revived during the 1970s after the Supreme Court ruled its use constitutional. Capital punishment was eliminated in the United Kingdom in 1965.

      More important differences appear in the rules of criminal procedure (procedural law). In England, this rests on modern legislation. Accused persons may now testify at the trial or not, as they wish; they are entitled to legal counsel; and they are assisted out of public funds when they are accused of serious crimes and are unable to afford to pay the costs themselves.

      Canada has a Dominion Criminal Code, which covers major crimes. It also has a Canadian Bill of Rights and provincial laws, such as the Ontario Human Rights Code. India has an overriding Bill of Rights.

      In the United States criminal procedure has become a constitutional matter, with a kind of federal common law of criminal procedure overriding state law in many instances. Thus, due process of law under the Fourteenth Amendment to the federal Constitution and the Federal Rules of Criminal Procedure confer wide protection on accused persons—too wide, some think, for public safety.

      English courts are reluctant to admit recordings of private conversations unless supported by direct evidence of persons present, and this is generally the position taken in the United States, although emergency wiretapping and other electronic monitoring are permitted with the permission of a court or in some cases involving national security. English and U.S. law exclude confessions unless they are made freely and spontaneously. If evidence is found by unlawful means—such as by searching a house without a warrant—English law permits such evidence to be used, but U.S. law does not. The main difference between English and U.S. safeguards is that English protections rest on statute or case law and may be changed by ordinary statute, whereas U.S. safeguards are constitutional and cannot be relaxed unless the Supreme Court later reverses its interpretation or the Constitution is amended.

The future of the common law

      In the past, the law performed the function of a referee in a free economy and was called in to apply generally accepted ideas of right and wrong to individual disputes. Today, law often forms an instrument of governmental policy or results from social pressures on the government. Law (law code), therefore, is increasingly administrative.

      Another tendency, and one that is likely to be reinforced, is an increasing reliance on statute law and codification as instruments of legal development. At one time the English Law Commission considered drafting a contract code, and the law of tort has been the subject of several statutes. When the United Kingdom entered the European Economic Community, it was thought that there might be pressures to make English law more accessible by codifying it along the lines of the continental model. Harmonization of the laws of the member states, however, has not thus far required this. The introduction of human rights as a basic element in the domestic law of the United Kingdom will undoubtedly bring about change, as will the growth of international tribunals. In the United States the legal sovereignty of the states impedes such a radical change, but uniform state laws are becoming more common.

      In view of the general tendency in modern society of shielding the individual as fully as possible from the consequences of chance accidents, the judge-made law of tort may eventually be replaced, as it was for a time in New Zealand, by a comprehensive system of official or private insurance similar to the present compulsory third-party risk insurance available for motor vehicles. The New Zealand experience, however, suggests that this is an expensive alternative. Public law is also gaining on private law in other fields—in real-property development, for example, public zoning or urban planning rules are already more important than the traditional restrictions imposed by individual neighbouring landowners. Public-welfare laws on child care and adoption, pensions (pension), and social security are often more important than the older private law based on the rights of spouses and children.

      English and American law can still be recognized as partners sharing a common root in the common law before the 18th century. But they are increasingly diverging, and English law, with or without the European Union, now shows much more specific similarities to the law in other countries of continental Europe than would hitherto have been admitted.

Albert Roland Kiralfy Mary Ann Glendon Andrew D.E. Lewis

Additional Reading

On the history the best guides are J.H. Baker, An Introduction to English Legal History, 4th ed. (2002); and S.F.C. Milsom, Historical Foundations of the Common Law, 2nd ed. (1981), a difficult but classic text. Good surveys of contemporary issues by various authors are to be found in M.D.A. Freeman and A.D.E. Lewis (eds.), Law and Opinion at the End of the Twentieth Century, Current Legal Problems, vol. 50 (1997).For the United States, E. Allan Farnsworth, An Introduction to the Legal System of the United States, 3rd ed. (1996), is a broad study of the American legal system. A good historical treatment is Lawrence M. Friedman, A History of American Law, 2nd ed. (1985), supplemented by the same author's American Law in the Twentieth Century (2002).General studies of other common-law jurisdictions include G.W. Paton (ed.), The Commonwealth of Australia: The Development of Its Laws and Constitution (1952); Bora Laskin, The British Tradition in Canadian Law (1969); E. McWhinney (ed.), Canadian Jurisprudence: The Civil Law and Common Law in Canada (1958); M.C. Setalvad, The Common Law in India, 2nd ed. (1970); and R. Zimmermann and D.Visser (eds.), Southern Cross: Civil Law and Common Law in South Africa (1996).Andrew D.E. Lewis

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